The U.S. Supreme Court issued a decision on June 8 in a case dealing with federal agents allegedly violating the constitutional rights of citizens.
Following the ruling, numerous tweets went viral claiming the court had just given U.S. Border Patrol agents authority to search homes without warrants, as long as those homes are within 100 miles of the U.S. border.
“The Supreme Court just ruled that Border Patrol can enter any home without a warrant and assault you, within 100 miles of the border,” read one tweet.
“The border… is a Constitution-free zone,” said another.
The claims often point out that the vast majority of Americans live within that 100-mile zone.
Can Border Patrol agents legally search your house without a warrant if you live within 100 miles of the U.S. border?
U.S. Supreme Court, Egbert v. Boule ruling
Howard Wasserman, Professor of Law at Florida International University
No, Border Patrol agents cannot legally search homes without a warrant simply because they’re within 100 miles of the border. A recent Supreme Court opinion did, however, limit citizens’ ability to seek damages if their constitutional rights are violated.
WHAT WE FOUND
The Supreme Court ruling that prompted the viral tweets doesn’t change what federal agents can and can’t do when it comes to searching private property. It does, however, change what citizens can do if their rights are violated by such agents.
So first, let’s break down what those rights are, and where the “100-mile zone” claims come from.
In most cases, law enforcement cannot stop and search you without probable cause, a search warrant, or your permission.
This is because of the Fourth Amendment to the Constitution, which states that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated… but upon probable cause.”
However, a 1952 federal law carved out something of an exception for border security. The Immigration and Nationality Act states that agents can, “within a reasonable distance from any external boundary of the United States,” without a warrant, “board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle.”
It defines “reasonable distance” as “100 air miles from any external boundary of the United States ” and the border as “land boundaries and the territorial sea of the United States extending 12 nautical miles from the baselines of the United States.”
In other words, within 100 miles of the border – a huge swath of the country – agents can pull over cars or buses and ask for identification papers, and don’t need a warrant, probable cause, or permission to do so. They do, however, need one of those justifications to legally do more than that – for instance, searching the vehicle for contraband.
This 100-mile zone applies to vehicles, but not to buildings, meaning agents still need legal justification such as a warrant to enter a home or business.
However, closer to the border, the law does give agents some additional access. It says “within a distance of twenty-five miles from any such external boundary [they may] have access to private lands, but not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States.”
The law explicitly states homes are off limits, meaning even within a 25-mile zone, Border Patrol agents cannot enter your home without permission, a warrant, or probable cause.
WHAT CITIZENS CAN DO
The ACLU claims “in practice, Border Patrol agents routinely ignore or misunderstand the limits of their legal authority in the course of individual stops, resulting in violations of the constitutional rights of innocent people.”
Legally, citizens can take the following actions if they believe any federal agent has violated their rights.
For one, if an agent obtains evidence against you in an unconstitutional search, it may be possible to have that evidence excluded from any court proceedings.
Secondly, you can sue for injunctive relief. That essentially means a court would order the agency not to engage in the conduct that violated your rights again.
Third, you can file an administrative complaint with the pertinent agency. The agency would then conduct an internal investigation, and potentially take action against the agent involved.
Fourth, if you’re looking to receive monetary damages, or for an external review of the agency’s conduct, you can file your complaint in federal court under the Federal Tort Claims Act. To do so you must first file an FTCA claim with the pertinent agency. After the agency conducts its review, it may decide to settle with you and provide damages. If it rejects your claim or fails to consider it within a certain time frame, then you can take it to court and sue for damages.
Fifth and finally, there is another, more rare measure you can take called a Bivens action, named after the 1972 Supreme Court case Bivens v. Six Unknown Named Agents. That case established a precedent for suing individual federal agents in court for constitutional violations, and obtaining more extensive damages. And that’s what the recent Supreme Court ruling addressed.
THE RECENT SUPREME COURT RULING
The circumstances in which citizens could sue agents under a Bivens action were already limited; the new ruling made them even more so.
The June 8, 2022 decision – Egbert v. Boule – dealt with a man named Robert Boule, who alleged that border agent Erik Egbert violated his Fourth Amendment rights by coming onto his property without permission, and then attacking him when he protested.
Boule sued Egbert in a Bivens action seeking damages for use of excessive force and violations of his constitutional rights. A district court sided with Egbert, but an appeals court sided with Boule.
The original Bivens case laid out a narrow framework for the circumstances under which such suits can be won, and later Supreme Court rulings narrowed that framework even further.
The 6-3 conservative majority ruled that Boule’s claim did not fall within that framework, thus further narrowing it to the point where winning a Bivens action is almost impossible. This was intentional; the justices said it should be up to Congress, not the courts, to decide whether citizens should be able to sue individual federal agents for damages.
The case does not deal with the Immigration and Nationality Act or the actual rules governing search and seizure near the U.S. border in any substantial way. However, by severely limiting the power of Bivens actions, the court did restrict options for recourse for citizens who believe federal agents violated their constitutional rights.
“The court did not explicitly say that the Fourth Amendment doesn't apply to Customs and Border Patrol officials,” said Howard Wasserman, a professor of law at Florida International University who also wrote about the Egbert case for SCOTUSblog. “It didn't say that they can just go into your house without a warrant, it didn't say that they can use excessive force whenever they want to. What it said was, if that happens… you don't have this one particular remedy when they do that.”
“Now, that's no small thing,” he said. “That particular remedy potentially has a very strong deterrent effect. And so if you take away remedies, then rights start to become kind of meaningless… if there's no mechanism to hold the officer accountable, and to obtain a remedy, then the right doesn't do a whole lot.”
VERIFY contacted U.S. Customs and Border Patrol for comment; the agency did not provide one as of publication.